I can honestly say I wrote major articles to ensure people would write their congresspeople about the nomination of Mukasey. I went in on my own and did a search of his decisions and found that the Jose Padillo "case" was just the tip of the iceberg and URGED people to do some real research and we could pool our knowledge. I got no responses whatsoever.
I feared then that Michael Mukasey (hiss!) would prove to be even worse than Gonegonalez, and I am very afraid that I am going to be right about that.
He is stonewalling every investigation, asserting falsehoods about America's legal obligations as regards Geneva, toying with CONgress (who so far have let him get away with it, although Sheldon Whitehouse can see through Mukasey's hard to fathom obfuscations) and is bent on destroying all BuZh administration IMPERATIVES. Why isn't he investigating REAL CRIMES . the politized firings of US attorneys which left investigations in legal limbo, the massive deconstruction of the US system of justice in the name of the Global War on Terror .. the WAR CRIMES being committed ...
Instead we are seeing what we dread the most, the destruction of secrecy rights, the right to a free press .. this is NOT a case about James Risen, this is a case about US, We the People versus the Attorney General of the United States.
Veegermatic
Is Michael Mukasey Prioritizing the Harassment and Imprisonment of Journalists?
by Glenn Greenwald
Ever since the President’s illegal warrantless eavesdropping program was revealed by the New York Times‘ Jim Risen and Eric Lichtblau back in December, 2005, there has been a faction of neoconservatives and other extremists on the Right calling for the NYT reporters and editors to be criminally prosecuted — led by the likes of Bill Kristol (now of the NYT), Bill Bennett (of CNN), Commentary Magazine and many others. In May, 2006, Alberto Gonzales went on ABC News and revealed that the DOJ had commenced a criminal investigation into the leak, and then “raised the possibility [] that New York Times journalists could be prosecuted for publishing classified information.”
That was one of the more revealing steps ever taken by Bush’s DOJ under Gonzales: the administration violated multiple federal laws for years in spying on Americans, blocked all efforts to investigate what they did or subject it to the rule of law, but then decided that the only real criminals were those who alerted the nation to their lawbreaking — whistleblowers and journalists alike. Even Gonzales’ public musing about criminal prosecutions could have had a devastating effect — if you’re a whistleblower or journalist who uncovers secret government lawbreaking, you’re obviously going to think twice (at least) before bringing it to light, given the public threats by the Attorney General to criminally prosecute those who do.
Eighteen months have passed since Gonzales’ threats, and while there have been some signs that the investigation continues — former DOJ official Jack Goldsmith, for instance, described how he was accosted and handed a Subpoena by FBI agents in the middle of Harvard Square, demanding to know what he knew about the NSA leak — there had no further public evidence that the DOJ intended to pursue Risen and Lichtblau. Until now.
Yesterday, the NYT reported that Jim Risen was served with a grand jury Subpoena, compelling him to disclose the identity of the confidential source(s) for disclosures in his 2006 book, State of War. The Subpoena seeks disclosure of Risen’s sources not for the NSA program (for which he and Lichtblau won a Pulitzer Prize), but rather, for Risen’s reporting on CIA efforts to infiltrate Iran’s nuclear program. Nonetheless, Risen’s work on State of War is what led to his discovery that the Bush administration was illegally spying on Americans without the warrants required by law.
The issuance of a grand jury Subpoena to a reporter seeking the disclosure of confidential sources is one of the most serious steps the DOJ can take. If the reporter refuses to disclose his source(s) — as reporters feel duty-bound to do, and, independently, as their future ability to uncover government secrets requires — the reporter can be held in contempt and consigned to prison (Risen has indicated he will not comply). Judy Miller’s refusal to disclose her sources in the Libby case, in response to a grand jury Subpoena, is what led to her imprisonment for 85 days, until she finally relented and revealed her sources. Had she not done so, she could have (and likely would have) remained imprisoned indefinitely.
Risen’s book, State of War, was published in early January, 2006 — more than two years ago. Why is it now, suddenly, that he is being subpoenaed to reveal his sources?
Issuing a Subpoena to a journalist poses such serious First Amendment threats that the DOJ has promulgated guidelines for what must occur in order for that to happen. Pursuant to Section III(A)(2)(l) of those guidelines — “Subpoenas to the Media”:
If the investigation involves media news gathering functions, the staff should first attempt to obtain the necessary information from non-media sources before considering subpoenaing members of the news media. If these attempts are unsuccessful and news media sources are the only reasonable sources of the relevant information, the staff should attempt to negotiate with the news media member or organization to obtain the information voluntarily. If such negotiations fail, the staff must seek the express approval of the Attorney General before issuing a subpoena.
Although one can’t say for certain, it seems rather likely that what has led to the issuance of this grand jury Subpoena to Risen is that Michael Mukasey has apparently decided to make criminal investigations of such leaks one of his top priorities, and is prepared for a massive First Amendment fight with Risen and his publisher, Simon & Schuster, which likely will include a willingness to imprison Risen if he fails to comply — just as the Neoconservative Right, still seething over Risen’s role in exposing the President’s NSA lawbreaking, has been demanding for some time.
One of the leading theorists of the “Imprison-the-NYT” movement has been Gabriel Schoenfeld of Norm Podhoretz’s Commentary Magazine. He wrote a widely-cited article back in March, 2006 arguing that Risen, Lichtblau and even NYT Editor Bill Keller should all be criminally prosecuted under the Espionage Act and other statutes for publishing the NSA story:
The real question that an intrepid prosecutor in the Justice Department should be asking is whether, in the aftermath of September 11, we as a nation can afford to permit the reporters and editors of a great newspaper to become the unelected authority that determines for all of us what is a legitimate secret and what is not. Like the Constitution itself, the First Amendment’s protections of freedom of the press are not a suicide pact. The laws governing what the Times has done are perfectly clear; will they be enforced?
On his Commentary blog yesterday, Schoenfeld gloated about the Subpoena to Risen and suggested a possible connection to not only Risen’s work on the NSA story, but also Schoenfeld’s own agitating for the imprisonment of these journalists. Schoenfeld wrote (referring to himself in the third person by the name of his blog, “Connecting the Dots”):
Finally, action. A federal prosecutor has issued a subpoena to James Risen of the New York Times, one of two reporters at the paper who compromised the National Security Agency’s (NSA) Terrorist Surveillance Program in December 1995 (sic). . . .
Why is this investigation proceeding now? Connecting the Dots has no inside information. But Connecting the Dots was seated at the same table as Michael Mukasey and his wife at two dinners in the last three years, back when the future Attorney General was still a mere federal judge. The leaks in the New York Times did not come up for discussion, but Mukasey made plain he was a close reader of COMMENTARY.
Did he read a certain article in COMMENTARY entitled Has the New York Times Violated the Espionage Act? That’s a question James Risen — and Bill Keller, too — should be thinking about.
It’s entirely unsurprising that Michael Mukasey sat socially with our nation’s most extremist neoconservatives and declared himself a “close reader of COMMENTARY.” After all, before his nomination was formally announced, the White House chose Bill Kristol to announce his selection and, in a lengthy article, to vouch to conservatives for what a fine AG Mukasey would make.
Mukasey was a long-time supporter of the neocons’ favorite candidate, Rudy Giuliani and, prior to becoming Attorney General, was part of the Giuliani campaign. And it was Dianne Feinstein and Chuck Schumer — both with neoconservative leanings (war supporters both, among other things) — who jointly enabled Mukasey’s confirmation by becoming the only Democrats on the Senate Judiciary Committee to vote in his favor.
Although there are still facts missing — such as whether this Subpoena was actually approved by Mukasey rather than Gonzales — it’s hard to avoid the conclusion that the Grand Jury Subpoena was done at least with Mukasey’s assent. It seems rather clearly to signify the intent of his Justice Department to more aggressively pursue reporters who disclose information embarrassing to the President.
It’s hard to overstate how threatening this behavior is. The Bush administration has erected an unprecedented wall of secrecy around everything it does. Beyond illegal spying, if one looks at the instances where we learned of lawbreaking and other forms of lawless radicalism — CIA black sites, rendition programs, torture, Abu Ghraib, pre-war distortion of intelligence, destruction of CIA torture videos — it is, in every case, the by-product of two forces: government whistleblowers and reporters willing to expose it.
Grand Jury Subpoenas such as the one issued to Risen have as their principal purpose shutting off that avenue of learning about government wrongdoing — the sole remaining avenue for a country plagued by a supine, slothful, vapid press and an indescribably submissive Congress. Mukasey has quickly demonstrated that he has no interest in investigating and pursuing lawbreaking by high government officials, but now, he (or at least the DOJ he leads) seems to be demonstrating something even worse: a burgeoning interest in investigating and pursuing those who expose such governmental lawbreaking and turning those whistleblowers and investigative journalists into criminals.
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book “How Would a Patriot Act?,” a critique of the Bush administration’s use of executive power, released in May 2006. His second book, “A Tragic Legacy“, examines the Bush legacy.
© Salon.com
Jon Perr has a most excellent write-up about it:
Lest anyone be confused, this is quite the opposite situation from when former NYT pseudo-reporter/White House shill, Judy Miller, was subpoenaed and went to jail for failing to reveal her sources in the CIA leak case. In her case she was refusing to name White House officials who were involved in government wrongdoing in which she had a role. In James Risen’s case, he exposed government wrongdoing that had been shrouded in secrecy, which is quite simply the most meritorious and patriotic deed a journalist can do, and is exactly why the fourth estate deserves to have a federal shield law to prevent government retaliation for exposing their crimes.
What DO we do about this latest assault on freedom
this time freedom of the press
We can educate ourselves on this things,
but what steps must we take to see that yet another
Constutional imperative is not ripped up and thrown away
Time for the public and bloggers to expand the public inquiry, and support the NYT. They’re under siege by alleged domestic enemies of the US Constitution. Allegedly this prosecutor, despite an oath to enforce Geneva, is supporting efforts to block evidence of war crimes in re Iran. The goal of the prosecutor appears less to identify a real source, but more to understand the methods the NYT is using to keep ahead of the President’s efforts to suppress open source information about alleged war crimes planning.
It is incorrect to assume the NYT only used classified, non-public sources. There are open sources which do point to information the President, NSA, and NSA contracting legal counsel do not want connected. Do not assume that the “only” way to arrive at these conclusions in the NYT or the book are through illegal methods.
There are things that can be done to corroborate information, and piece together open-source information which baffles the NSA. It’s likely the NYT has used a novel approach to do something the President and others didn’t consider needed hiding or protected. It’s the burden of the prosecutor to prove that there is “a source” as opposed to a method. There may not be “a source”; there could be a method of inquiry that is novel, and proprietary.
It’s the burden of the government to prove that the “only” way this information could be known was through illegal methods; or a leak. That is a burden the government needs to prove. The fact that they’re unable to find “the source” means they don’t know how the NYT reporter was able to arrive at the conclusions; hence, they have no case, just accusations. That’s not evidence, but insinuation by unsophisticated prosecutors. The prosecutor appears to only be going on a fishing trip to find an answer the domestic NSA-intercepts have not been able to pinpoint: How was the cover-up thwarted; and what will they do “next time” to hide all the evidence from the voters?
It appears the President and contractors are attempting to use the legal system to disclose the methods used to catch them. This has the appearance of corruption by the prosecutor, and contradicts the notion of justice: Oversight through an informed voting public. It appears the prosecutor has bought into the notion that any public discussion of alleged war crimes can only occur if there is illegal disclosures: That’s absurd. The illegal activity cannot lawfully be suppressed. The public should remind itself: There is a higher duty than the President: It is the oath of office which includes the Constitution and all treaties, including Geneva.
The grand jury is not well-advised to support a line on inquiry that seeks to suppress evidence of war crimes, illegal planning, or reckless US government activity. What’s most absurd is the GOP was in the “Clinton did it too”-crowd; but would ask that that accusation not be applied, and that it is “only” possible to conclude “there were efforts to penetrate Iran” using only illegal reporting and sourcing.
Why is the “Clinton did it too”-crowd upset that the disclosures occurred about the efforts in Iran? Because it shows that Clinton attempted to do something; and after 2003, the Bush President was unable to find what Clinton was concerned about. No longer did the US government have a pretext for war with Iran that they could take to the UN Security Council. This means the power balances has shifted away from the US, and includes Russia and China as credible sources of opposition to the US track record of reckless defiance of international law.